Disability on trial 

As an employer, what steps should you reasonably take to avoid dismissing a disabled employee?

This was a question that was recently considered by the Employment Appeal Tribunal (EAT).

Background

The claimant was employed as a pest control technician, a physically demanding role. After he was diagnosed with multiple sclerosis, despite various adjustments and modifications, it became impossible for him to continue in this role. The respondent explored possibilities for moving him into a different role.

In February 2019, the claimant applied to become a service administrator. Following an interview and assessment process, he was unsuccessful. The following month, a capability meeting concluded that no adjustments could be made that would enable the claimant to remain in his existing post, and, as he had been unsuccessful in his application, he was dismissed.

The claimant succeeded in his claims for disability discrimination (including failure to comply with the duty to make reasonable adjustments) and unfair dismissal. It would have been a reasonable adjustment for the respondent to transfer him into the service administrator role for a trial period. He was entitled to be treated more favourably than other candidates.

On Appeal

The employer appealed to the EAT on various grounds, including that the tribunal made an error in concluding that a trial period in a new role would have been a reasonable adjustment.

Dismissing the appeal, the EAT considered the employer had a duty under the Equality Act 2010 to take such steps as is reasonable to avoid the claimant facing dismissal due to the requirement for him to work in his substantive role.

“[P]utting the claimant… into the service administrator role on a trial basis would have not merely involved postponing the date of his inevitable dismissal by four weeks. It would not be just a short stay of execution, but held out the prospect of the axe being lifted entirely… it had a real prospect of avoiding the disadvantage [his dismissal] altogether…”

Comment

As an employer, your duty to make reasonable adjustments when a disabled employee is facing dismissal might require you to appoint a disabled person to an alternative post. This might include offering the employee a trial period when there are concerns about the employee’s suitability for an alternative post. 

The case law confirms this duty goes further than many employers might expect. Depending on the circumstances, a reasonable step might be to:

• Appoint them to an alternative post, even if they are not the best candidate.
• Transfer to an existing vacancy, even at a higher grade, without competitive interview requirements.
• Give disabled employees priority over others, such as those at risk of redundancy.
• Create a new role for them.
• Swap their role with that of a non-disabled employee.

For more information about this article or any other aspect of people services reimagined, download our App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.